Mahlangu Family v Minister of Rural Development and Land Reform

On 21 December 1998, attorney Louise Du Plessis lodged an individual land claim on behalf of Ms Mavis Sikhosana (later Ngomane) with the Regional Land Claims Commissioner (RLCC) for Mpumalanga in respect of the farm Mooikopje, in terms of the Restitution of Land Rights Act 22 of 1994. The claim was allegedly lodged on behalf of her mother. An affidavit in June 2009 revealed that Ms Sikhosana was the granddaughter of William Mahlangu and was claiming on behalf of her mother. The dispossession was alleged to have occurred in 1962 or 1972. The claim was published in the Government Gazette on 21 August 2009 as an individual claim by Ms Sikhosana. The second defendant (landowner) objected, noting that Ms Sikhosana was born in 1972 and could not have been dispossessed. After a mandamus application, the claim was referred to court on 20 February 2012, but now cited as a claim by the "Mahlangu Family" rather than Ms Sikhosana individually. The second defendant raised a point in limine regarding locus standi. At the trial in May 2014, the plaintiff's new counsel applied for a postponement without notice or affidavit support.

• Whether the postponement application should be granted
• Whether the claim as lodged, published and referred was a proper claim qualifying for adjudication under the Restitution of Land Rights Act
• Whether Ms Sikhosana qualified as a person entitled to restitution under section 2(1) of the RLRA
• Whether the Mahlangu Family had locus standi to bring the claim
• Whether the RLCC acted ultra vires its powers by converting an individual claim into a community/family claim

(i) The application for postponement was dismissed; (ii) The interested party's referral report was set aside; (iii) Ms Sikhosana's individual claim was postponed sine die pending any further steps by the interested party or Ms Sikhosana; (iv) The interested party was ordered to pay the second defendant's costs of the proceedings since the date the referral report was filed.

The binding legal principles established are: (1) A Regional Land Claims Commissioner acts ultra vires its powers when it converts an individual land claim into a community or family claim without a proper claim having been lodged by that community or family; (2) For a person to qualify for restitution under section 2(1)(a) of the Restitution of Land Rights Act 22 of 1994, they must have been personally dispossessed of a right in land after 19 June 1913 as a result of past racially discriminatory laws or practices; (3) A claim that has been gazetted as an individual claim cannot be referred to court as a community claim without proper procedural compliance; (4) The Mahlangu Family, having never lodged a claim, do not qualify as claimants under the RLRA and have no locus standi to pursue restitution; (5) A referral report under section 14 of the RLRA must correspond to the claim that was accepted under section 11(1) and published in the government gazette; (6) Procedural requirements for land claims, including proper description of land, nature of rights dispossessed, and evidence substantiating claims, are mandatory and must be complied with.

The court made several non-binding observations: (1) In the modern age of telephony where nearly every South African has a cell phone, legal representatives should be able to obtain telephonic instructions and arrange for affidavits through correspondent attorneys rather than waiting for face-to-face consultations; (2) While courts are normally loathe to grant costs orders in constitutional litigation of this nature, there are circumstances where such orders are justified, particularly where needless litigation results from unlawful conduct by administrative bodies; (3) The court noted that Ms Sikhosana's affidavit of 8 June 2009 (deposing that she claimed on behalf of her mother) appeared to be an afterthought designed to rectify flaws in the referral report, given it was deposed to four days before the research report was signed off; (4) The court observed that properties labouring under gazetted land claims since 2009 suffer devaluation and non-investment prejudice to landowners; (5) The court indicated it was up to Ms Sikhosana and the RLCC to decide what steps to take next regarding her individual claim, which remained in place.

This case is significant in South African land restitution jurisprudence as it clarifies important procedural requirements under the Restitution of Land Rights Act. It establishes that administrative bodies cannot unilaterally convert individual land claims into community or family claims without proper authorization. The judgment reinforces the principle that claimants must comply with the statutory requirements of section 2(1) of the RLRA, including that the person claiming must have actually been dispossessed of a right in land. It demonstrates the court's willingness to scrutinize the actions of land claims commissioners and hold them accountable for ultra vires conduct. The case also illustrates the importance of proper claim formulation, gazetting, and referral procedures, and that these procedural safeguards cannot be bypassed through administrative sleight of hand. Furthermore, it shows that costs orders may be appropriate in land restitution matters where the interested party has engaged in unlawful or unjustified conduct causing prejudice to landowners.